Shipley v. Bureau of Prisons ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LLOYD D. SHIPLEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-0485 (RJL)
)
BUREAU OF PRISONS, et at., )
)
Defendants. )
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MEMORANDUM OPINION
This matter is before the Court on defendants' motion to dismiss. For the reasons
discussed herein, the Court will deny the motion without prejudice, and transfer this action to the
United States District Court for the Eastern District of North Carolina.
1. BACKGROUND
Plaintiff is a federal prisoner who currently is incarcerated at a Federal Correctional
Institution in Butner, North Carolina ("FCI Butner"). He is legally blind, see Mem. ofP. & A. in
Supp. of Defs.' Mot. to Dismiss ("Defs.' Mem. "), Ex. B (Health Services Clinical Encounter
dated June 9, 2009) at 1, and has undergone transplants of both corneas, Compi. at 8 (page
number designated by the Court).!
Plaintiff represents that he "received cornea transplants at the Aspen Center,
Dallas Texas, ... in the fall of 1988, and did not experience any sight difficulties until Februar[y]
1995, when he was incarcerated and medications were taken from him by the United States
[M]arshal[]s." PI.' s Mot. and Argument in Opp 'n to Defs.' Mot. to Dismiss at 2. He alleges that
the deprivation of medications and lack of proper treatment while incarcerated "resulted in the
need for ... cornea transplant operation[s] in 2004 and 2005." !d. at 2.
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In February 2007, plaintiff began to "experience[] extreme eye pain," Compi. at 8, which
he reported to medical staff at the Butner Federal Medical Center ("FMC Butner") on several
occasions, id. Both eyes had become infected, and plaintiff underwent a procedure at the Duke
Medical Center in May 2007 designed to stop the leakage of fluid from the eyes and to relieve
the pain. !d. Apparently the procedure was not effective, and plaintiff again experienced
extreme pain. Id. He complained of his condition to medical staff, and in June 2008 he was
returned to the Duke Medical Center for treatment. Id. Notwithstanding instructions to return
one month later, plaintiff was not sent back to Duke Medical Center until December 18, 2008.
!d. at 9. Plaintiff neither has received further treatment at FMC Butner staff nor has been
referred elsewhere for treatment. Id.
Plaintiff attributes the deterioration of his eyesight and eye pain to defendants' refusal to
provide adequate medical care for his eyes, see Compi. at 8-9, and defendants' alleged deliberate
indifference to his medical needs have "caused [him] to suffer and endure extreme harm and
physical damages, in addition to excru[ c]iating pain to the eyes." Id. at 10. These allegations are
the basis of his claim under the Eighth Amendment to the United States Constitution "to be free
from Cruel and Unusual Punishment[.]" Id. Because defendants allegedly have refused to
address grievances he has filed through the BOP's Administrative Remedy Program, he alleges
violations of his rights to due process and equal protection under the Fifth Amendment to the
United States Constitution. !d. at 10. In addition, plaintiff contends that the defendants
"conspired to and have also deprived [him] of his Civil and Constitutional Rights under the First,
Fifth, Sixth, Eighth, and Fourteenth Amendments." Id. at 11. He demands injunctive relief and
compensatory and punitive damages. Id. at 12.
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Defendants Lappin, Ramsey, Libero, Blair, Bonner, Spiller, Hunter-Busky, and Autry are
sued both in their official capacities and in their individual capacities under Bivens v. Six
Unknown Named Agents a/Fed. Bureau a/Narcotics, 403 U.S. 388 (1971). See CompI. at 6-7.
Defendants Watts and Johns are sued in their official capacities only. See id. 2
In addition, plaintiff brings a negligence claim against the United States under the Federal
Tort Claims Act ("FTCA"), see 28 U.S.c. 1346(b), and demands damages of$1 million. 3 See
CompI. at 2-3; Defs.' Mem., Ex. J (Cox Decl.), Ex. C (Claim for Damage, Injury, or Death dated
October 9, 2008).
II. DISCUSSION
Defendants move to dismiss on the grounds that the Court lacks subject matter
jurisdiction and personal jurisdiction, improper venue, insufficient service of process, and for
failure to state a claim upon which relief can be granted. Although certain of defendants'
arguments are meritorious, the Court focuses on one: improper venue. See Defs.' Mem. at 16-17.
"Courts in this [jurisdiction] must examine challenges to ... venue carefully to guard against the
2
Defendant Presbyla has been dismissed. See September 29,2009 Minute Order.
In his FTCA claim, plaintiff alleged that his "sight began to get worser [sic]" after
cornea transplants in 2004 and 2005. Defs.' Mem., Ex. J (Cox Decl.), Ex. C (FTCA claim dated
October 9,2008). The BOP denied the claim on October 27,2008. Id., Ex. D (October 27,2008
letter from M.T. Finseyamore, Regional Counsel, Mid-Atlantic Region, BOP, regarding
Administrative Tort Claim Number TRT-MXR-2007-00417). Plaintiff described his injury as
follows:
Irreversable [sic] damages and injury to eyes do [sic] to medical staff s refusal to act
immediately to treat the first injury and allowing me not to get the medical attention
at right time.
Id., Ex. C.
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danger that a plaintiff might manufacture venue in the District of Columbia." Cameron v.
Thornburgh, 983 F. 2d 253,256 (D.C. Cir. 1993).
Plaintiff asserts that the District of Columbia "is ... the most convenient forum" because
"two of the defendants, including Harley G. Lappin, Director of the [BOP], is located in
Washington, D.C." CompI. at 3. Defendants argue that, "[t]o the extent [the] complaint can
be construed as making claims against the [i]ndividual [d]efendants personally," the complaint
must be dismissed for improper venue. Defs.' Mem. at 16.
In a civil action where the Court's jurisdiction is not based solely on diversity of
citizenship, such as this case, venue is proper in "(1) a judicial district where any defendant
resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred ... or (3) ajudicial district in which
any defendant may be found, if there is no district in which the action may otherwise be
brought." 28 U.S.C. § 1391(b). Insofar as the BOP is headquartered in the District of Columbia
and its Director and Administrator of National Appeals are named defendants in their official
capacities, venue in this district is not improper. See Nestor v. Hershey, 425 F.2d 504,521 n.22
(D.C. Cir. 1969) ("Where a public official is a party to an action in his official capacity he resides
in the judicial district where he maintains his official residence, that is where he performs his
official duties." (internal quotation marks and citations omitted)). However, all the individual
defendants, seven of whom are BOP employees at FCI Butner, are sued in both their official and
individual capacities. Venue is not proper in this district under any of the provisions of28
U.S.C. § 1391(b) with respect to these defendants in their individual capacities: all of the
defendants do not all reside in the District of Columbia, no substantial part of the events giving
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rise to plaintiff's claim took place here, and this is not a case in which no other district is
available. Rather, a substantial part of the events giving rise to plaintiff's claims occurred in
North Carolina while plaintiff has been incarcerated at FCI Butner, and the individuals most
closely involved with the provision or deprivation of medical care are assigned to that facility.
An action brought under the FTC A "may be prosecuted only in the judicial district where
the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. §
1402(b ).4 "Under the prevailing interpretation of section 1402(b), venue is proper in the District
of Columbia if sufficient activities giving rise to plaintiff's cause of action took place here."
Franz v. United States, 591 F. Supp. 374, 378 (D.D.C. 1984). The events giving rise to
plaintiff's FTCA claim occurred principally in North Carolina, where plaintiff currently is
incarcerated.
In a case filed in a jurisdiction in which venue is improper, the Court shall either dismiss
or, in the interest of justice, transfer the action to any other district where it could have been
brought. 28 U.S.c. § 1406(a). The decision to transfer an action on this ground is left to the
discretion of the Court. See Novak-Canzeri v. Saud, 864 F. Supp. 203, 207 (D.D.C. 1993). The
Court may transfer an action even though it lacks personal jurisdiction over the defendants.
Naartex Consulting Corp. v. Watt, 722 F.2d 779,789 (D.C. Cir. 1983), cert. denied, 467 U.S.
1210 (1984). Transfer is appropriate under § 1406(a) "when procedural obstacles 'impede an
4 Only the United States is a proper defendant to a claim under the FTCA. 28
U.S.C. §§ 1346(b)(1), 2679(a); Cox v. Sec'y of Labor, 739 F. Supp. 28,29 (D.D.C. 1990).
Plaintiff is proceeding pro se, and the Court construes his complaint liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). His intention to bring the FTCA claim against the United
States is apparent, and a pleading defect of this nature may be remedied by amending the
complaint. See Moore v. Agency for Int 'I Devel., 994 F.2d 874,877 (D.C. Cir. 1993)
(commenting that "leave to amend is particularly appropriate when a plaintiff proceeds pro se").
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expeditious and orderly adjudication ... on the merits.'" Sinclair v. Kleindienst, 711 F.2d 291,
293-94 (D.C. Cir. 1983) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962»;
Crenshaw v. Antokol, 287 F. Supp. 2d 37, 45 (D.D.C. 2003) (stating that the "lack of venue
should not bar resolution of the plaintiffs claims on the merits," and transferring the case to the
district where "venue would be proper and the defendants would be subject to personal
jurisdiction"). Such procedural obstacles include "lack of personal jurisdiction, improper venue,
and statute oflimitation bars." Sinclair v. Kleindienst, 711 F.2d at 294. "The interest of justice .
. . generally requires transferring such cases to the appropriate judicial district rather than
dismissing them." Davis v. Am. Soc't ofCiv. Eng'rs, 290 F. Supp. 2d 116, 120 (D.D.C. 2003)
(citations omitted).
Plaintiff remains incarcerated at FCI Butner, and most of the individual defendants
apparently reside in North Carolina and work at FCI Butner. It appears that the Eastern District
of North Carolina has personal jurisdiction over most of the individual defendants, and any
deficiencies with respect to the service of process can be corrected. It is likely that witnesses,
medical records and other evidence are located in North Carolina.
Assuming without deciding that the claims set forth in the complaint are meritorious, they
are better addressed in the United States District Court for the Eastern District of North Carolina.
The Court will transfer this action. See, e.g., Galindo v. Gonzales, 550 F. Supp. 2d 115, 117
(D.D.C. 2008) (transferring civil action filed by federal prisoner to the district in which he was
incarcerated); Armstrong v. Lappin, 630 F. Supp. 2d 73, 77 (D.D.C. 2009) (transferring pro se
prisoner's FTCA action alleging an attack while confined at the Metropolitan Correctional
Center in New York City to the Southern District of New York); Autry v. United States, No. 08-
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0605,2008 U.S. Dist. LEXIS 67161, at *2 (D.D.C. Sept. 3,2008) (transferring pro se prisoner's
action brought under the FTCA and Bivens to the district in which he was incarcerated); Simpson
v. Fed. Bureau o/Prisons, 496 F. Supp. 2d 187,194 (D.D.C. 2007) (transferring prisoner's civil
action brought under the FTCA and Bivens to the district having "personal jurisdiction over the
two defendants most involved in the underlying disciplinary proceedings and [where] venue" is
proper). Defendants' motion to dismiss will be denied without prejudice.
An Order accompanies this Memorandum Opinion.
DATE:
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